Fair Mobility or Waiver of Competence over Immigration?

Legal - March 24, 2024

During the Belgian Presidency, the Council of the European Union has published a report entitled “Fair Mobility in the EU and the role of the European Labour Authority”.

In principle, the European Labour Authority or ELA, born in 2017, is vested with reduced competences, pertaining to intra-EU mobility of workers (so called posted workers).  The Authority helps ensure that the mobility of those workers within the EU is compliant with the rule of law.  On the other hand, the ELA also enhances cooperation among relevant authorities of member States and other stakeholders in tackling undeclared work.

The text extends over more than a hundred pages in order to analyse the various items within ELA’s mandate, and to confirm whether these are being executed efficiently, making some recommendations where necessary.

Unfortunately, the report offers no quantitative data; it is exclusively based on a survey conducive to a number of qualitative arguments and statements.

By the end of it, in the corresponding section dedicated to conclusions, the text states that the issue of third-country nationals seems to be most pressing for the Union in the current state of things.  The Belgian executive defends a supposed need for the Union to attract non-EU immigrants in order to keep the labour market and economy functioning.  Again, there is no factual support for this point, so frequently brought up in Union circles.

Under this assumption as a ground base, the report suggests extending the remit of ELA not only to EU posted workers, but also to non-EU nationals looking for a job in the Union.  The logic is simple:  If the new mass mobility coming from beyond European borders is so crucial, why not benefitting from ELA’s expertise on fair intra-EU mobility to assure a similar guarantee to workers coming from third countries?

On top of it, the posting of non-EU citizens in the Union is legally based, for the most part, on the Van der Elst court case (European Court of Justice judgment of 9 August 1994).  This is used by the Belgian government to propose considering a future directive tbat would take on board issues such as the right of non-EU posted workers to stay in the Union for some time after their posting has ended, or to change employer in such a case, as well as providing the posted third-country nationals with assistance, for example informing them effectively of their rights and obligations applying in the member State of posting.

Though the report does not say it, it is clear that the proposal for a directive would be the occasion served on a silver tray for centralists to award further competences to the ELA on immigration from third countries, thereby stealing border sovereignty from member States.

Thus, the concept of cross-border mobility would be used by Brussels authorities to start controlling the access of third-country nationals to the Union.  Furthermore, an extension over this matter would lead the way to integration of social security, another field so far preserved by national governments.

But the broadening of unaccountable Union bureaucrats’ grip on both areas, immigration and social security, desperately conflicts with EU primary law.  Article 179(5) of the Treaty on the Functioning of the European Union proclaims the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, while Article 153(1) only provides the Union with a competence of support on social security and social protection of workers.

This is one more reason for European Conservatives to oppose an expansion of EU powers through a change of treaties.  On the contrary, the reform of the same should rather go in the opposite direction:  that of clarifying and recovering too much ground already surrendered to the European Commission.